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RESTORING the LOST ANTI-INJUNCTION ACT Kristin E

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RESTORING the LOST ANTI-INJUNCTION ACT Kristin E HICKMANKERSKA_BOOK (DO NOT DELETE) 11/20/2017 9:53 AM RESTORING THE LOST ANTI-INJUNCTION ACT Kristin E. Hickman* & Gerald Kerska† Should Treasury regulations and IRS guidance documents be eligible for pre-enforcement judicial review? The D.C. Circuit’s 2015 decision in Florida Bankers Ass’n v. U.S. Department of the Treasury puts its interpretation of the Anti-Injunction Act at odds with both general administrative law norms in favor of pre-enforcement review of final agency action and also the Supreme Court’s interpretation of the nearly identical Tax Injunction Act. A 2017 federal district court decision in Chamber of Commerce v. IRS, appealable to the Fifth Circuit, interprets the Anti-Injunction Act differently and could lead to a circuit split regarding pre-enforcement judicial review of Treasury regulations and IRS guidance documents. Other cases interpreting the Anti-Injunction Act more generally are fragmented and inconsistent. In an effort to gain greater understanding of the Anti-Injunction Act and its role in tax administration, this Article looks back to the Anti- Injunction Act’s origin in 1867 as part of Civil War–era revenue legislation and the evolution of both tax administrative practices and Anti-Injunction Act jurisprudence since that time. INTRODUCTION .................................................................................... 1684 I. A JURISPRUDENTIAL MESS, AND WHY IT MATTERS ...................... 1688 A. Exploring the Doctrinal Tensions.......................................... 1690 1. Confused Anti-Injunction Act Jurisprudence .................. 1691 2. The Administrative Procedure Act’s Presumption of Reviewability ................................................................... 1704 3. The Tax Injunction Act .................................................... 1707 B. Why the Conflict Matters ....................................................... 1712 * Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School. † J.D. 2017, University of Minnesota Law School. For helpful conversations and feedback in developing this article, we would like to thank Nick Bagley, Carol Chomsky, Jeremiah Coder, Allan Erbsen, Cliff Fleming, Jud Judkins, Aaron Nielson, Scott Schumacher, Kathryn Sedo, Mark Thomson, Barbara Welke, and participants in workshops at the J. Reuben Clark Law School at Brigham Young University, the Peter A. Allard School of Law at the University of British Columbia, the University of Minnesota Department of History, and the Tax Administration Research Centre at the University of Exeter. Our thanks also go to Scott Dewey and Paul Dimick for outstanding research assistance. 1683 HICKMANKERSKA_BOOK (DO NOT DELETE) 11/20/2017 9:53 AM 1684 Virginia Law Review [Vol. 103:1683 1. A History of Loose Administrative Procedure Act Compliance ...................................................................... 1712 2. The Expanded Scope of Tax Administration ................... 1717 II. THE ANTI-INJUNCTION ACT’S LOST ROOTS .................................. 1719 A. Civil War–Era Origins .......................................................... 1720 B. Post–Civil War Textual and Contextual Constancy .............. 1725 1. Changes to the Anti-Injunction Act’s Text ...................... 1726 2. Changes to the Anti-Injunction Act’s Statutory Context ............................................................................ 1730 C. Post–Civil War Evolution of Assessment and Collection ...... 1734 D. Taxes and Penalties, Rules and Regulations ......................... 1738 III. RESTORING THE ORIGINAL MEANING AND FUNCTION OF THE ANTI-INJUNCTION ACT ................................................................. 1747 A. Using History to Explain the Anti-Injunction Act’s Scope .... 1749 B. Justifying a Narrower Anti-Injunction Act ............................ 1754 C. A Legislative Alternative ....................................................... 1756 D. Countervailing Concerns ....................................................... 1760 CONCLUSION ....................................................................................... 1764 INTRODUCTION IMING matters. In Abbott Laboratories v. Gardner, the Supreme T Court recognized in the Administrative Procedure Act (“APA”) a presumption in favor of judicial review of final agency actions.1 Consistent with that presumption, the Abbott Labs Court adopted a general policy of reviewing final agency action, including but not necessarily limited to legally binding agency regulations, on a pre- enforcement basis.2 This presumption spares regulated parties the Hobson’s choice of “comply[ing] with . requirement[s] and incur[ring] the costs of changing” business practices or “follow[ing] their present course and risk[ing] prosecution.”3 Courts and 1 387 U.S. 136, 140 (1967). 2 Id. at 139–41; see Ronald M. Levin, Understanding Unreviewability in Administrative Law, 74 Minn. L. Rev. 689, 702 (1990) (observing that Abbott Labs “establish[es] a presumption in favor of judicial review”). 3 Abbott Labs., 387 U.S. at 152. HICKMANKERSKA_BOOK (DO NOT DELETE) 11/20/2017 9:53 AM 2017] Restoring the Lost Anti-Injunction Act 1685 commentators alike defend pre-enforcement review as essential to public confidence in the quality and legitimacy of agency action.4 In Mayo Foundation for Medical Education & Research v. United States, the Supreme Court proclaimed that it was “not inclined to carve out an approach to administrative review good for tax law only.”5 But the Abbott Labs presumption of reviewability for final agency action is rebuttable; Congress can and often does create exceptions.6 In Florida Bankers Ass’n v. U.S. Department of the Treasury, a divided panel of the U.S. Court of Appeals for the D.C. Circuit interpreted a provision of the Internal Revenue Code (“IRC”) known as the Anti-Injunction Act (“AIA”)7 as precluding pre-enforcement judicial review of one set of Treasury regulations, with reasoning that would extend to most if not all Treasury regulations and IRS guidance documents.8 The Florida Bankers decision thus sends judicial review of Treasury Department (“Treasury”) regulations and Internal Revenue Service (“IRS”) guidance documents interpreting the IRC down a different path than the rest of administrative law. The D.C. Circuit’s decision in Florida Bankers not only places AIA interpretation at odds with Abbott Labs and the general administrative law norm in favor of pre-enforcement judicial review of final agency action. Florida Bankers also arguably contradicts the Supreme Court’s reading in Direct Marketing Ass’n v. Brohl9 of the similarly worded Tax Injunction Act (“TIA”) concerning judicial review of state tax matters.10 A more recent federal district court decision in Chamber of Commerce v. IRS cites Direct Marketing in concluding that the AIA does not bar pre- 4 See, e.g., Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670–72 (1986) (discussing the importance of judicial review to the legitimacy of administrative action); Levin, supra note 2, at 742 (acknowledging standard justifications for pre-enforcement review); Keith Werhan, The Neoclassical Revival in Administrative Law, 44 Admin. L. Rev. 567, 597 (1992) (“The proposition that judicial review will generally be available to secure the legitimacy of agency action is a central component of the traditional model of administrative law.”). 5 562 U.S. 44, 55 (2011). 6 See, e.g., Mich. Acad. of Family Physicians, 476 U.S. at 672–73 (“Subject to constitutional constraints, Congress can, of course, make exceptions to the historic practice whereby courts review agency action.”). 7 I.R.C. § 7421(a) (2012). 8 799 F.3d 1065, 1067 (D.C. Cir. 2015). 9 135 S. Ct. 1124 (2015). 10 28 U.S.C. § 1341 (2012). HICKMANKERSKA_BOOK (DO NOT DELETE) 11/20/2017 9:53 AM 1686 Virginia Law Review [Vol. 103:1683 enforcement judicial review of Treasury regulations and sets up the possibility of a circuit split.11 Meanwhile, the dueling Florida Bankers majority and dissenting opinions and Chamber of Commerce decision together underscore the courts’ ad hoc and inconsistent efforts to interpret and apply the AIA in cases challenging Treasury and IRS actions. To be blunt, the courts lack an overarching theory of the AIA’s meaning and scope against which to evaluate individual tax cases, and the result is jurisprudential chaos. Developing a coherent understanding of the AIA’s meaning and scope is important, especially regarding pre-enforcement judicial review of APA challenges against Treasury regulations and IRS guidance documents. Treasury and the IRS have not been faithful adherents to the requirements of the APA.12 In the aftermath of Mayo Foundation, APA- based court challenges to Treasury regulations and IRS guidance documents are on the rise.13 As was the case for the regulations at issue in Florida Bankers, many of those complaints do not fall neatly into traditional, post-enforcement avenues for judicial review of tax cases— leaving many regulations and guidance documents effectively unreviewable.14 Even where judicial review through traditional avenues is potentially available, however, the resulting delay significantly limits the courts’ ability to provide a meaningful remedy.15 Recent judicial treatments of both the AIA and the TIA have focused almost exclusively on shallow parsings of isolated phrases of current 11 Chamber of Commerce v. IRS, No. 1:16-CV-944-LY, 2017 WL 4682049 (W.D. Tex. Sept. 29, 2017). 12 See, e.g., Kristin E. Hickman,
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